request. The other is an actual force, as in burglary, as breaking open a door or gate; and in that case it is lawful to oppose force to force; and if one breaks down the gate, or comes into my close vi et armis (by force and arms), I need not request him to be gone, but may lay hands on him immediately, for returning violence with violence; so if one comes forcibly and takes away my goods I may oppose him without any more ado, for there is no time to make a request."' 45 The use of undue or improper force or violence will defeat the defendant's plea of justification. Thus, a trespasser had put up a ladder against the defendant's house and was proceeding to nail a board there when the defendant forbade him. The trespasser not desisting, the owner shook the ladder and threw the plaintiff to the ground. It was held that the force used was not justifiable in defense of the possession of land.46

or reprisal

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33. Recaption of personal property.-"Recaption happens when any hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant; in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, wherever he happens to find them; so it be not in a riotous manner, or attended with a breach of the peace. But, as the public peace is a superior consideration to any one man's private property, this natural right of

* **

45 Green v. Goddard, 2 Salk. 641 (Eng.).

46 Collins v. Renison, Sayer 138 (Eng.); Newcome v. Russell, 133 Ky. 29, 117 S. W. 305, LEADING ILLUSTRATIVE CASES.

recaption shall never be exerted where such exertion must occasion any bodily contention, or endanger the peace of society." "If the chattel of one man be put upon the land of another by the fault of the owner of the chattel, and not by the fault or connivance of the owner of the land, the owner of the chattel cannot enter to retake it; but if it be put there without the fault or consent of either party, the owner of the chattel may enter and take it peaceably, after demand and refusal of permission, repairing, however, any damage which may be occasioned by his entry. * * * He may lawfully enter and retake his property, where it has been wrongfully taken or received by the owner of the land." 48 The act complained of, if not justified on the ground of the recaption of a chattel, will constitute a battery or a trespass to the realty for which a person will be held liable.

34. Same subject-Trespasses excusable.-The plaintiff was unlawfully hunting on the defendant's land and killed some rabbits. The defendant's servants came up as he was taking them off and demanded that they be given up. On the plaintiff's refusal, the defendant's servants took the rabbits from him, with no more than necessary force. The defendant was held not liable for assault and battery.19 A gave B a paper to read on the spot. B was about to carry it away. A was not liable for preventing him and recovering the paper.50 A is not

473 Blackstone, Commentaries, p. 3.

48 Chambers v. Bedell, 2 W. & S. 225 (Pa.), LEADING ILLUSTRATIVE CASES. 49 Blades v. Higgs, 30 L. J. C. P. 347, 100 E. C. L. 713 (Eng.).

50 Baldwin v. Hayden, 6 Conn. 453.

liable for a trespass in retaking from B, while on A's land, fruit which B has stolen from A's trees.51 B had, by false and fraudulent representations as to his solvency, purchased a stove of A. A discovering the fraud pursued B and overtook him two miles from the place of purchase. A is not liable for a battery in repossessing himself of the stove.52 35. Same subject-Trespasses not excusable.-A had paid off a mortgage, and, B refusing to deliver up the note which he held, attempted to take it from B by force. It was held that A was not justified in his act, and he was held liable for an assault.53 A in pursuit of one of his hens which had strayed on B's premises, assaulted B while on the latter's land. He is liable for the battery." 54 The limits of justification in recaption of property are well illustrated in the following case: The plaintiff was a bookkeeper, and fifty dollars lost money had been deducted from his salary. Subsequently he received a sum of money with which to pay the help. Acting under the advice of counsel, he took from this money the amount owing him at the time, including what had been deducted from his pay, put it in his pocket, and returned the balance to one of his employers, saying he had received his pay and was going to leave. The employers then seized the plaintiff and attempted to take the money from him. For this assault and battery the plaintiff brought suit and

51 Hamilton v. Barker, 116 Mich. 684, 75 N. W. 133.

52 Hodgeden v. Hubbard, 18 Vt. 504.

53 Sabre v. Mott, 88 Fed. 780.

54 Shellabarger v. Morris, 115 Mo. App. 566, 91 S. W. 1005, LEADING ILLUSTRATIVE CASES.

recovered judgment. In affirming the judgment the upper court said: "Unquestionably, if one takes another's property from his possession, without right and against his will, the owner or the person in charge may protect his possession, or retake the property, by the use of necessary force. He is not bound to stand by and submit to wrongful dispossession or larceny when he can stop it, and he is not guilty of assault, in thus defending his right by using force to prevent his property from being carried away. But this right of defense and recapture involves two things: First, possession by the owner; and, second, a purely wrongful taking or conversion, without a claim of right. If one has intrusted his property to another, who afterwards, honestly, though erroneously, claims it as his own, the owner has no right to retake it by personal force. The law does not permit parties to take the settlement of conflicting claims into their own hands. It gives the right of defense, but not of redress."'55

36. Entry upon lands to repossess them.-"Of the same nature as the right of recaption is the right which the owner of lands has, when another is wrongfully in possession thereof, to re-enter when he may do so peacefully, and thereafter to exclude the wrongdoer therefrom. This right may exist either where one has gone into possession without right, or where one, having had an estate in, or at least lawful possession of the lands, has had his right terminated by operation of law or by the act of the owner. The chief restraint upon this rem

55 Kirby v. Foster, 17 R. I. 437, 22 Atl. 1111.

edy is sufficiently indicated by what has already been said; it must be had in a peaceful manner? and an actual possession, though wrongful, must not be subverted by the employment of force." 56 At common law, where possession had been taken from the owner, he could retake it by force. But as such a course often led to breaches of the peace, a statute, 5 Richard II, was enacted, which provided, "That none from henceforth make any entry into any lands and tenements, but in case where entry is given by the law; and in such case not with strong hand, nor with multitude of people, but only in peaceable and easy manner." This statute has either been re-enacted in the several states of the Union, or been recognized as part of the American common law. The effect of the statute is subject to some conflict of opinion.

37. Same subject.-One line of cases holds that the landlord is not warranted in employing force to expel a tenant who is holding over.57 Other cases take the view that the Statute of Richard II and its American equivalents, providing for a criminal prosecution, do not prevent the landlord from justifying the use of force, when sued in a civil action.58 In a recent English case it is said: "This statute [5 Richard II] creates one of the great differences which exist in our law between the being in possession and the being out of possession of land, and which gives rise to the old saying that possession is

56 Cooley, Torts (3d ed.), p. 76.

57 Newton v. Harland, 1 M. & G. 956 (Eng.).

58 Sterling v. Warden, 51 N. H. 217, LEADING ILLUSTRATIVE CASES.